Research On Criminal Forfeiture System

The criminal forfeiture system is a set of legal principles and rules,which are related to the particular possession owned by criminals or the third person and having close connection with crime that deprived by States and being reverted to the Treasury.The "Legislative Yuan" of Taiwan published a new criminal forfeiture system on December 30,2015,which involves the object scope of criminal forfeiture,forfeiture party,precondition,legal effects and so on.This amendment of law marking the formation of the "trinal-track"criminal sanction system for criminal penalty,security measures,and criminal forfeiture.Although the revision has been challenged lot,it has brought the criminal forfeiture system of Taiwan into modernization,forming a systematic and complete system.Furthermore,to a large extent it has played a positive role in punishing crimes over all.On the contrary,there are still many deficiencies in the criminal forfeiture system on the mainland of China,which directly affects its actual operation effect of judicial practice.Through the statistics and analysis of 100 judgment samples relating to "the crime of smuggling ordinary goods and articles”.The judicial organs go their own way and operate under the simple conditions.Both identification and treatment of the property closely related to the crime are extremely chaotic.The phenomenon of "different judgments in the same case" abounds.Based on this,according to the theory of legal dogma,this paper compares the new forfeiture system in Taiwan with the current criminal forfeiture system in mainland China from the aspect of substantive law,finds out and solves the existing problems,so that protects the property rights of citizens,maintain the legal property order and makes the criminal forfeiture system punish the crime effectively.This paper adopts deduction structure.The first part is about the general study of the criminal forfeiture system,including three chapters,which mainly focus on the analysis and introduction of the basic theories related to the criminal forfeiture system.The second part is about the division study of the criminal forfeiture system,including the last four chapters.Since the actual utility of the criminal forfeiture system manifests itself in the national deprivation and handling of specific objects,Chapter 4?7 are analysis and research on criminal forfeiture of different objects.The logic of these four chapters is basically the same,premised on the definition of the concept and the summary of features,clearly defining the methods for identifying different objects.On this basis,the legitimacy and legal characters of different objects'forfeiture are analyzed one by one.By comparing the forfeiture rules of the relevant criminal laws across the Taiwan Strait,I found the main problems existed in the forfeiture of specific objects in mainland China.Based on reflection,the relevant experience of Taiwan,other countries and regions will be used to improve the criminal forfeiture system in the mainland China.The first chapter demonstrates the basic theory of the criminal forfeiture system.Since different countries and regions have different understanding of the criminal forfeiture system,in order to consolidate the basis of the argument,it should be ensured to conduct a comparative study of the criminal forfeiture system in the same context.Therefore,the criminal forfeiture system in different countries and regions was combed and expounded.From the tendency of the forfeiture of property penalties' development,it has completed the historical mission for a specific period and was abolished by most democratic and legal countries and regions in the world.The current criminal forfeiture system only refers to special forfeiture.On the basis of clarifying the basic connotation,this paper elaborates the legitimacy of the criminal forfeiture system from three aspects:the theoretical origin,the value orientation,and the constitutionality basis of the criminal forfeiture system.Comparing the historical evolution of the criminal forfeiture system between the two sides of the Taiwan Strait,the social background and value choices of their formation and development are displayed,thereby consolidating the foundations of reference and avoiding the "rejection reaction" after the system is transplanted.The second chapter develops the basic framework of the criminal forfeiture system.The basic structure is composed of the legal nature,the scope of the object,the subject,the preconditions,and the legal effect of criminal forfeiture.It is closely related to the property rights of citizens.Therefore,compared the relevant core contents in the criminal forfeiture system of mainland with Taiwan,other countries and regions,it could find the main differences,and the advantages as well as the disadvantages of the systems behind the differences.The third chapter is the overall prospect of constructing the mainland modern criminal forfeiture system.The criminal forfeiture system is a systematic and huge project.In view of the development trend of the criminal forfeiture system in the Taiwan region,other countries and regions,the mainland should correct and improve localization according to its actual situation.At the level of reality,starting from the rationality analysis of the"monism" and "dualism" of the criminal sanction system,the basic state of the current "dual-track" criminal sanction system in mainland China is clarified.On the basis of this,the feasibility of constructing the "trinal-track" criminal sanction system in the mainland is demonstrated.At the level of what should be,the reference and introduction of the criminal forfeiture system in Taiwan area,other countries and regions needs to deal with and coordinate the relationship between different departments,the relationship between the substantive law and the procedural law and the relationship between the internal norms of the criminal forfeiture system.The fourth chapter is the forfeiture of contraband.Contraband is a general concept in the entire legal system,refers to the items that are dangerous to citizens,society,and the state according to their nature or condition under corresponding objective circumstances.Fatalness is its essential characteristic,and the core of contraband forfeiting lies in its own determination of danger.Therefore,the forfeiture of contraband does not depend on the existence of criminal wrongful act and should be included in the scope of compulsory forfeiture.The forfeiture of contraband shall pay attention to the protection of the third party in the case of no violation of the prohibition.Since contraband is variable,when the forfeiture object conflicts with other objects,the forfeiture of prohibited items should be given priority.The fifth chapter describes the forfeiture of object used for crimes.What is used for crime in the context of mainland China includes crime preparations,but excludes what is used after the crime is completed.The "direct special"theory should be adopted for the identification of the objects used for the crime.The objects used for the crime are those directly related to the constitutive elements of the crime.The essential feature of objects used for crimes other than contraband is that they are used for property that was previously legally owned by a citizen.As the abuse of property rights by citizens violates the social obligation of using property,legally owned property is no longer justified and is brought in the scope of ex officio expropriation.In the view of "responsibility ability is the factor of responsibility",the forfeiture of the objects used for crimes should be limited to intentional offense.The forfeiture of the materials used for crimes concern the relevant contents of the theory of property rights.Related issues should be dealt with under the basic position of protecting the property rights of the citizens and maintaining the property order.In order to prevent the legal effects of criminal forfeiture from being circumvented,we should also establish a double layer system of forfeiture and its alternative measures,and standardize the terms of forfeiture.The sixth chapter is the forfeiture of product derived from crime.Product derived from crime is a physical derivative accompanying with criminal conducts and criminal costs.It is not justified from the beginning and should be included in the scope of the obligation to confiscate.Product derived from crime is not included in the object scope of criminal forfeiture in mainland China,but there are clear regulations on how to deal with things arising from general illegal acts of the same nature as product derived from crime.Mainland criminal legislation and judicature have their own ways in dealing with product derived from crime,which violates the restraints of the principle of legally prescribed punishment for crimes.The same treatment of product derived from crime and product used for crime in Taiwan clearly ignores their respective characteristics.Thus,the forfeiture of product derived from crime should be constructed based on review and reflection.The seventh chapter focus on the forfeiture of the proceeds of crime.The expression of the "illegal income" in the mainland is determined by the"qualitative + quantitative" criminal legislative model,but in terms of the actual effect,there is no difference between the "illegal income" and the"proceeds of crime".The proceeds of crime are the interests of property acquired by the perpetrator of the crime,including the interests of both direct and indirect property."No one shall retain the proceeds of crime" means that property acquired through criminal acts violates the limits of the acquisition of property rights,which is not legitimate from the beginning,and should be included in the scope of compulsory forfeiture.Comprehensively considering the advantages and disadvantages of applying the "total principle" and the "net principle",the cost of crime in proceeds of crime should also be included in the scope of forfeiture.Forfeiture of the proceeds of crime can be characterized as a counterbalance of unjust enrichment in order to restore lawful property order.Through the analysis of three types of cases,such as"fulfiling type","moving type" and "agent type" clarified the specific situation of forfeiture of the third party's criminal proceeds.Define the scope of the victim,analyze and make choices in the order of priority for protection of trust interests of righteous third parties and protection of victims' right to reply.There is no definite and sufficient evidence to presume that the proceeds of crime can prove that the relevant property interests are derived from crime,but there is a high degree of possibility.The forfeiture of presumed proceeds of crime is of great significance in punishing crime,but its legitimacy is also questionable.On the basis of alleviating the conflict between the forfeiture of presumed proceeds of crime and the principle of presumption of innocence,this paper analyzes the feasibility of using the proceeds of presumption for reference in mainland China from the practical,theoretical and normative levels.And the application of the presumption of forfeiture of proceeds of crime is strictly restricted.